Harbison v. Sanford

90 Mo. 477 | Mo. | 1886

Buack, J. —

This was a suit for the partition of real estate among the heirs of J. C. Harbison, and Linus Sanford, who had acquired the interest of Darwin Harbison. The interest of J. H. R. Harbison was encumbered by a deed of trust, which he had made to Sanford,, as trustee, to secure a debt to Nathan Vanhorn. The heirs of Vanhorn were made parties, and the proceeds- ' of this deed of trust were ordered to be paid to them and their assignees, and, of this order, Sanford, who is the only appellant, -complains on the ground that he was a creditor of the Vanhorn estate.

The petition sets out the deed of trust and alleges that Vanhorn died, leaving three heirs, two of whom .had assigned their interests in the debt to one of the-plaintiffs, and that all of the debts of that estate had been paid. Appellant in Ms answer refers to this deed of trust, and states that, by contract with Vanhorn, he was to have for fees as attorney in securing and collecting the debt one-fourth of the amount realized. The decree, in stating the interests of the parties, finds that John N. Harbison, one of the plaintiffs, is entitled to two-thirds of the debt, and that Mrs. Dickerson is entitled to the other one-third. There is a judgment that partition be made according to the interests of the parties as found, and to that end a sale of the premises is ordered. No exceptions whatever were made to the decree, but at a subsequent term, when the sheriff’s report of sale came on for approval, appellant suggested that the estate of Yanhorn was indebted to him and objected to the disbursement of the avails of the deed of trust, which objections were overruled, and from that ruling he appealed.

The beneficiary in a deed of trust to secure the payment of a debt is a proper party to a suit for partition of the land. This conclusion was not stated in Yates v. Johnson, 87 Mo. 213, because not necessary to a disposition of that case, but it results from what is there said. As Yanhorn was dead, his administrator, in a regular course of proceedings, should have been made a party to the.suit. An administrator could have been appointed at the instance of the heirs, or the appellant, if he was a creditor; and, when appointed, could have been made a party to the suit at any time before final judgment. Parkinson v. Caplinger, 65 Mo. 292. The final judgment is the approval of the sale, or report of the commissioner, as the case may be. Murray v. Yates, 73 Mo. 14. Had that been done, the court could and doubtless would have ordered the money paid to him. Langham v. Darby, 13 Mo. 556. But, instead of pursuing this course, or making any such suggestion to the court, the appellant made the specific issue that he was entitled lay contract to one-fourth of the'proceeds realized. That issue was fairly adjudged against him, and of that finding he does not complain. He chose the method by which he would test his right, and he ought to be held to abide the consequences.

Again,' when he changed the form of his demand from a claim to a specific interest in the fund to a general indebtedness of the Yanhorn estate to him, the court heard the evidence. The services were rendered some twelve or thirteen years before the commencement of this suit, and the court evidently found that he had no subsisting demand against the estate, and with that finding we are satisfied.

There is no claim that the estate is otherwise indebted, and substantial justice requires that this judgment should be affirmed, and it is so ordered.

All concur.